Citation Nr: 0205973
Decision Date: 06/06/02 Archive Date: 06/13/02
DOCKET NO. 94-36 622 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Whether new and material evidence has been presented to
reopen the claim for entitlement to service connection for
pes planus.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
K. J. Alibrando, Counsel
INTRODUCTION
The veteran served on active duty from May 1942 to April
1943. The veteran also had a period of active duty for
Department of Veterans Affairs (VA) purposes with the
Merchant Marine in oceangoing service during the period from
April 1944 to August 1945.
Originally, this case came before the Board of Veterans'
Appeals (Board) on appeal from a May 1994 rating decision in
which the Montgomery, Alabama Regional Office (RO) determined
that the veteran had not submitted new and material evidence
to reopen his claim for service connection for bilateral pes
planus. In a January 1997 decision, the Board also
determined that the veteran had not submitted new and
material evidence to reopen his claim for service connection
for bilateral pes planus.
In an October 1997 order, the United States Court of Appeals
for Veterans Claims (Court) vacated the Board's January 1997
decision and remanded this matter to the Board. In April
1998 and August 2001, the Board remanded the matter to the RO
for further development.
The Board notes that further development is required in light
of the decision to reopen the claim for entitlement to
service connection for bilateral pes planus, before
proceeding to consider the merits of the underlying claim,
and this action will be discussed fully in the Board's
decision below.
FINDINGS OF FACT
1. In September 1968, the RO denied the veteran's claim of
service connection for bilateral pes planus, but the veteran
did not appeal in a timely fashion from that decision.
2. New evidence which is so significant that it must be
considered in order to fairly decide the merits of the claim
has been associated with the claims folder since the
September 1968 rating determination.
CONCLUSION OF LAW
New and material evidence has been submitted for the purposes
of reopening the claim of service connection for a low back
disability. 38 U.S.C.A. §§ 5107, 5108, 7104, 7105 (West 1991
& Supp. 2001); 38 C.F.R. § 3.156(a) (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
At the outset, it is noted that there has been a significant
change in the law during the pendency of this appeal. On
November 9, 2000, the President signed into law the Veterans
Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A.
§§ 5102, 5103, 5103A, 5107 (West Supp. 2001). It essentially
eliminates the requirement that a claimant submit evidence of
a well-grounded claim, and provides that VA will assist a
claimant in obtaining evidence necessary to substantiate a
claim but is not required to provide assistance to a claimant
if there is no reasonable possibility that such assistance
would aid in substantiating the claim. This change in the
law is applicable to all claims filed on or after the date of
enactment of the VCAA, or filed before the date of enactment
and not yet final as of that date. 38 U.S.C.A. § 5107 note
(Effective and Applicability Provisions) (West Supp. 2001);
see also Karnas v. Derwinski, 1 Vet. App. 308 (1991).
The final regulations implementing the VCAA were published on
August 29, 2001. The provisions of these regulations apply
to any claim for benefits received by the VA on or after
November 9, 2000, as well as to any claim filed before that
date but not decided by the VA as of that date, with the
exception of that the amendments to 38 C.F.R. § 3.156
relating to the definition of new and material evidence and
to 38 C.F.R. § 3.159 pertaining to VA assistance in the case
of claims to reopen previously denied final claims, which
apply to any claim to reopen a finally decided claim received
on or after August 29, 2001. See 66 Fed. Reg. 45620 (August
29, 2001); Karnas v. Derwinski, 1 Vet. App. 308, 312-13
(1991).
The RO has not had an opportunity to consider this new
legislation with regard to the veteran's claim. The Board
finds that given the favorable nature of the Board's decision
with regard the issue of whether new and material evidence
has been submitted to reopen the veteran's claim for service
connection for bilateral pes planus, that no further
assistance in developing the facts pertinent to that issue is
required.
In a September 1968 rating decision, the RO denied service
connection for bilateral pes planus.
When a claim is disallowed by the RO, appellate review is
initiated by the filing of a Notice of Disagreement within
one year from the date of mailing of notice of the result of
the initial disallowance. 38 U.S.C.A. § 7105(a), (b). If a
Notice of Disagreement is filed within the one-year period,
the RO shall issue a Statement of the Case. 38 U.S.C.A. §
7105(d). The veteran is provided a period of 60 days (or the
remainder of the one-year period from the date of mailing of
the notice of the determination being appealed) to file the
formal appeal. 38 U.S.C.A. § 7105(d); 38 C.F.R. § 20.302(b)
(2001).
In the absence of a perfected appeal, the RO's decision
becomes final, and the claim will not thereafter be reopened
or allowed, except as otherwise provided. 38 U.S.C.A. §
7105; 38 C.F.R. § 20.1103 (2001). As the veteran did not
file a Notice of Disagreement within one year of the notice
of the September 1968 rating decision, the decision became
final.
If new and material evidence is presented or secured with
respect to a claim which has been disallowed, the Secretary
shall reopen the claim and review the former disposition of
the claim. 38 U.S.C.A. § 5108 (West 1991 & Supp. 2001);
Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).
New and material evidence means evidence not previously
submitted to agency decision makers, which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant, and which by
itself or in connection with the evidence previously
assembled is so significant that it must be considered in
order to fairly decide the merits of the claim. 38 C.F.R.
§ 3.156(a) (2001).
The Court summarized the analysis in determining whether
evidence is new and material in Evans v. Brown, 9 Vet. App.
273 (1996). VA must first determine whether the newly
presented evidence is "new," that is, not of record at the
time of the last final disallowance of the claim and not
merely cumulative of other evidence that was then of record.
If new, the evidence must be "probative" of the issue at
hand.
However, there is no longer a requirement that, in order to
reopen a claim, the new evidence, when viewed in the context
of all the evidence, both new and old, must create a
reasonable possibility that the outcome of the case on the
merits would be changed. Hodge v. West, 155 F.3d 1356 (Fed.
Cir. 1998) (expressly rejecting the standard for determining
whether new and material evidence had been submitting
sufficient to reopen a claim set forth in Colvin v.
Derwinski, 1 Vet. App. 171 (1991).
Finally, for the purpose of determining whether a case should
be reopened, the credibility of the evidence added to the
record is to be presumed. Justus v. Principi, 3 Vet. App.
510, 513 (1992).
The evidence of record at the time of the September 1968
rating decision includes the report of induction examination
in May 1942, which noted that the feet were normal. On
separation examination in February 1943, bilateral third
degree pes planus was noted. Also included in the record was
WD AGO Form 0150-4, Transcript from Enlisted Record. That
record indicates that the reason and authority for separation
was WD Cir 395/42 and Not recommended for reenlistment or
induction.
An August 1968 private doctor's affidavit noted physical
findings and a diagnosis of severe flat feet.
An August 1968 VA examination report showed complaints of
foot pain and the diagnoses included third degree pes planus,
severe and symptomatic.
The new evidence submitted since the September 1968 rating
decision include copies of service daily sick reports showing
that the veteran received medical treatment in January and
February 1943. While those records do not indicate the
nature of the treatment or what condition was treated. A
February 1943 entry noted under "Medical Officer's Report"
that the condition was "EPTI", meaning existed prior to
service.
The new evidence also includes the testimony of the veteran
in August 1996 during which he indicated that he had flat
feet prior to induction in the Army. He stated that he did
not have any problems with his flat feet prior to entry into
active service. He indicated that after marching and walking
during service he suffered from foot pain and was treated on
several occasions, including hospitalization. He also
testified that he was seen by a medical board and that he was
discharged due to his foot condition. The veteran testified
again in November 2001 and recounted essentially the same
facts and contentions. He indicated that he was receiving
ongoing treatment for his bilateral foot condition.
The Board finds that the new evidence is so significant that
it must be considered in order to fairly decide the merits of
the claims. The evidence is certainly new, as it was not of
record at the time of the September 1968 RO decision.
Furthermore, the evidence is material as to the question of
service connection.
Thus, the Board finds that new and material evidence has been
submitted to reopen the claim of service connection for
bilateral pes planus.
Although the record contains sufficient evidence to reopen
the veteran's claim, the Board has determined that further
development is required before proceeding to consider the
merits of the underlying claim. Accordingly, the Board is
undertaking additional development pursuant to authority
granted by 67 Fed. Reg. 3,099, 3,104 (Jan. 23, 2002) (to be
codified at 38 C.F.R. § 19.9(a)(2)). When it is completed,
the Board will provide notice of the development as required
by Rule of Practice 903. (67 Fed. Reg. 3,099, 3,105 (Jan.
23, 2002) (to be codified at 38 C.F.R. § 20.903.) After
giving the notice and reviewing your response to the notice,
the Board will prepare a separate decision addressing this
matter.
ORDER
As new and material evidence has been received to reopen the
claim of service connection for bilateral pes planus, the
claim is reopened and the appeal is allowed to this extent
only.
M. W. GREENSTREET
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.